Working Abroad Remotely – Implications for Employers

Posted in : Seamus Says - Employment Law Discussion on 3 December 2020
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered: Working abroad remotely

What are the implications of letting employees work from home abroad, i.e., they have gone abroad to visit family and wish to stay and work from home because they don't go into the office? There are various tax rules and regulations there where somebody is working outside the UK. Isn't there, Seamus?

Seamus: Yes. Look, this is a really interesting scenario, and it is one that I've come across a couple of times where you have somebody that has moved to Northern Ireland, in the cases that I've been dealing with, and during the process of the pandemic, returned back to their original home country and have continued to work there on the basis that they feel safer.

There was another scenario where one employee travelled back during the summer and they found it very difficult to get back to Northern Ireland and was wanting to sort of maintain their position that they stay at their original home until the pandemic settles. But it does raise a number of issues, I suppose.

Look, the first issue for me would really be it's a contractual issue. Often, you'll see within any contract of employment that it will state and specify a place of work. And if the employee is now working from home, but abroad, if they're doing that without consent . . . and I haven't come across it personally, but I'm sure there are cases there, Scott, where employees have had the opportunity maybe where they are home-workers and have returned back home and are continuing to work at home unbeknown to the employer. So, if they've done that without consent, I think that there's potential breach of contract issue there.

And there is a risk that working from home abroad could bring a sufficiently . . . if it's sufficiently widespread, it could become a contractual right that reverting back to it then could prove very difficult.

I suppose that's getting back to where we were at with the current pandemic and somebody doing it. But if it was for a longer stretch, somebody could then say, "Well, look, I can be at home in the Netherlands, for instance, and do my job as normal".

Other important aspects are the tax and Social Security aspect of it. If you're working from home, but abroad, what is the position on tax and Social Security contributions in the country in which they're actually living and working, even though their contract may say that they're a UK or an NI employee?

And it may be that the employer is going to have to get to a point where they're obliged to make deductions and account for the tax and Social Security contributions of the country that they're actually working and living in.

Other sort of things that come to my mind are where does the ramifications lie where . . . if you're coming back to the contractual point, if their employment contract is governed by Northern Irish law, but they're working abroad somewhere else, what happens to all those contractual points? Things like their holidays, the custom and practice in relation to holidays that we would have a Northern Ireland maybe to where they're living and what the holidays are there.

Essentially, the question is,

"Does the employment law and practices of the country that they're now working from take precedent over their contractual points as regards things like holiday, redundancy, employment protections, things like that?"

On a broader level, I suppose . . .

Scott:   I was going to say, Seamus, they're certainly very different. There was a very good article once with all these different employment rights across Europe. A doc  years ago and a labour relations agency event that they held, and they were looking at various employment rights. In Holland, you can get up to two years' sick pay, full pay when you're off sick. So that would be an interesting one if you've got somebody who's posted abroad, you're obliged to meet their minimum statutory obligations when it comes to statutory national minimum wages and holidays and all that kind of stuff there.

But it highlights the fact that modern, if you like . . . not modern, but employment contracts and employment law doesn't really reflect or keep up to date with the way that people work nowadays. There is absolutely no reason logically, logistically, why somebody can't do a job in America or India, and yet the work is for use in Northern Ireland or anywhere else.

You have contractors. You send stuff out to India to get worked, or you send it to America, or you send it anywhere. It doesn't really matter. But it does matter if it's an employee. But it hasn't kept up.

And we do have a final question on the gig economy, which I hope we'll get to. But if you want to finish up on your point you were making there with people working abroad . . .

Seamus: Well, just the other thing would be as well . . . time zones. The practicalities of working from home, but abroad. If you're doing a job where a colleague wants to contact you during sort of their normal working hours, but in actual fact that's whenever you're in bed sleeping because it's night-time wherever you are, those sorts of things.

But other things would be insurance. Talking about employer's liability. Does that cover you for anybody that's working overseas? Health and safety issues. How do you monitor that? How do you deal with it? It's not that you can just drop around and do an inspection. And those sorts of practicalities of it all.

But I think, ultimately, you could get requests for employees to remain at home during the pandemic because of safety issues or because they can't travel. And it's about dealing with those, I think, uniformly so that they're not creating any issues in terms of discrimination points or anything like that.

Scott: Okay. And somebody there has just asked about if there are GDPR issues. There certainly will be after the 31st of December anyway.

Seamus: Absolutely.

Scott: …Contractual clauses when you're sending information backwards and forward.


This article is correct at 03/12/2020

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Seamus McGranaghan
O'Reilly Stewart Solicitors

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